Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 738 (ORI)

ABDUL SALAM v. STATE OF ORISSA

2002-11-13

P.K.MOHANTY

body2002
JUDGMENT : P.K. Mohanty, J. - This appeal is by one of the accused persons convicted by order dated 29.8.1992 passed by the learned Sessions Judge, Puri in S.T.Case No. 309 of 1991 under (hereinafter referred to as "N.D.P.S. Act") and sentenced to undergo rigorous imprisonment for ten years with fine of rupees one lakh, in default to undergo rigorous imprisonment for a further period of five years. 2. The prosecution case briefly stated is that on receipt of secret information regarding possession of the narcotic drugs by two persons staying in room No. 6 of Leo Castle Hotel situated at Chakratirtha Road near Sea Beach, Puri, the Officer-in-charge, Sea Beach P.S. informed the matter to the Superintendent of Police and being instructed, he conducted a raid in presence of the Town Inspector, P.W. 1 and Reserve Inspector, P.W. 5 with two independent witnesses Rama Panda (P.W. 2) and Bijaya Behera (P.W. 3). At the time of raid both the accused persons were inside room No. 6 which was closed from inside. P.W. 6 knocked at the door and thereafter the door was opened. The Police Party, after giving the personal search including that of the independent witnesses, entered inside the room and conducted search. There was a table inside the room and on the top of that table there was a packet (thunga) (M.O.I), which contained heroin in a polythene packet, empty charms cigarette packet, partially charred cigarette jari paper and another cigarette jari paper. On weighment of the polythene packet, it came to 18 grams 500 mgs of heroin. The accused persons having not explained possession therefore, P.W. 6 seized the same under the seizure list (Ext. 1), kept the seized articles in a sealed packet containing paper seal with the signatures of the witnesses and also wax seal impression. Specimen impression of the seal used was also made on the seizure list. P.W. 6 drew up the plain paper F.I.R. Ext. 6, seized the hotel register marked Ext. X and Y for identification under the seizure list (Ext.2). He examined the witnesses, prepared the spot map, arrested the accused after explaining the ground of arrest and informed the Superintendent of Police about the detection of the case besides submitting a written report to that effect to the P.W. 1, the Inspector of Police, who is immediate superior officer. X and Y for identification under the seizure list (Ext.2). He examined the witnesses, prepared the spot map, arrested the accused after explaining the ground of arrest and informed the Superintendent of Police about the detection of the case besides submitting a written report to that effect to the P.W. 1, the Inspector of Police, who is immediate superior officer. On 19.6.1991, the seized packets were produced before the S.D.J.M., Puri, samples were drawn from the same and sent to the S.F.S.L., Bhubaneswar for chemical analysis. A prima face case having been found against the accused persons for having committed offences punishable u/s 21 of the N.D.P.S. Act, charge-sheet was filed. The prosecution has examined witnesses. The accused persons took the plea of denial, but however, during the defence, they took the plea that both the accused persons being scolded in their house at their native place in Iqbulapur under 23 Pragannas, West Bengal, they left their houses in search of jobs and reached Puri and while they were resting on the verandah of the Leo Castle Hotel, they were caught by the police and roped in this case though the seized articles were either belonging to them nor were recovered from them. 3. The learned Sessions Judge had framed four issues for consideration: (a) Whether by the date of occurrence, the accused persons were occupying room No. 6 in the Leo Castle hotel; (b) Whether on 23.3.1991, the raiding party conducted a search in that room in presence of the accused persons and found the aforesaid articles including the heroin from their possession; (c) Whether the procedures prescribed under law have been scrupulously complied with; and (d) What offence, if any, the accused persons have committed; 4. The learned Sessions Judge, on consideration of the evidence of P.W. 4 along with the evidence of P.Ws. 1, 5 and 6, has recorded a finding that the accused parsons were in occupation of Room No. 6 of Leo Castle Hotel on 22.3.1991 and when P. Ws. 1, 5 and 6 reached the hotel room on that date, that accused persons were inside the Room No. 6. It is also found that the plea of defence as revealed from the statement of D.Ws. 1, 5 and 6 reached the hotel room on that date, that accused persons were inside the Room No. 6. It is also found that the plea of defence as revealed from the statement of D.Ws. 1, 2 and 3 is not substantially and sufficiently proved, so as to disbelieve the presence of the accused persons in the hotel room and to believe their presence in their respective houses in village. The specific finding recorded by the learned Sessions Judge was that the accused persons had come to Puri and stayed in Room No. 6. in Leo Castle Hotel and continued occupying the room till the search and seizure was made. The learned Sessions Judge, on scrutiny of the evidence of the Investigating Officer (P.W. 6), P.W. 5, P.W. 4 the Manager of the Hotel, has come to hold that the raiding party conducted search and seizure on the relevant date and time in Room No. 6, where the accused persons including the Appellant were present and the door was closed from inside. The prosecution witnesses 2 and 3, however, did not support the prosecution case with regard to search and seizure. However, P.Ws. 1, 5 and 6, the three official witnesses, have corroborated and testified the factum of search and seizure. It is also the finding of the learned Sessions Judge that the accused persons were in conscious possession of the narcotic drugs, heroin, which was seized by P.W. 6 after duly following the procedure laid down under the provisions of the N.D.P.S. Act. It has been clearly found from the report of the Chemical Analysist of S.F.S.L. that the contents of the polythene packets were Diacetylmorphine having the percentage of 24.4. The accused persons were found to be in possession of the aforesaid narcotic drugs, the learned Sessions Judge has held them guilty of the offence u/s 21 of the N.D.P.S. Act and convicted them hereunder to undergo rigorous imprisonment for 10 years and fine of Rs. 1 lakh, in default to undergo rigorous imprisonment for five years more. 5. The contention of the Learned Counsel for the Appellant is that the mandate of Section 55 of the Act having not been applied with by the Investigating Officer, the accused-appellants have been prejudiced and accordingly, the entire proceeding is vitiated in law. 1 lakh, in default to undergo rigorous imprisonment for five years more. 5. The contention of the Learned Counsel for the Appellant is that the mandate of Section 55 of the Act having not been applied with by the Investigating Officer, the accused-appellants have been prejudiced and accordingly, the entire proceeding is vitiated in law. It is contended that since the Investigating Officer, after sealing the seized packets, had not parted with his personal seal, there was ample chance that the seized articles could be manipulated and tampered with. It appears that the learned Sessions Judge in his judgment in Paragraph 17, on detailed discussion has recorded a finding that the seized articles were packed and sealed in presence of the accused persons and the witnesses in proper manner at the spot of seizure. The Investigating Officer forwarded the seized articles in that sealed condition to the Court of learned S.D.J.M. and the sample packet, M.O.VI, in toto was packed and sealed and despatched. Ext. 9, the forwarding letter was marked with objection, but however, correctness of Ext. 1 was not pressed at the trial stage. The learned Standing Counsel in this connection has referred to and relied on the decision of the Apex Court in Karnail Singh v. State of Rajasthan 2000 (6) Supreme 414 and contends that if procedure prescribed under Sub-Section 3(a) of Section 52 is resorted to at the time of search and seizure, the applicability of Section 55 of the Act would be attracted, but if the arrested person and the seized articles are forwarded under Clause (b) of Sub-section (3) of Section 52 of the Act by the officer empowered u/s 53 of the Act, the compliance of Section 55 cannot be insisted upon. It is pointed out that nowhere during the trial, the accused-appellant had raised such a plea of prejudice because of alleged violation of the provision of Section 55 of the Act. A reference has also been made by the learned Standing Counsel to the decision in Satyanarayan Das v. State of Orissa 1998 (15) O.C.R.453. 6. The contention of the Learned Counsel that one of the co?accused having been acquitted on the self-same set of evidence, the accused-appellant could not have been convicted is thoroughly misconceived since the learned Sessions Judge has convicted both the accused persons and sentenced of them to undergo the punishment. 7. 6. The contention of the Learned Counsel that one of the co?accused having been acquitted on the self-same set of evidence, the accused-appellant could not have been convicted is thoroughly misconceived since the learned Sessions Judge has convicted both the accused persons and sentenced of them to undergo the punishment. 7. In any view of the matter, the appeal is devoid of merit and accordingly, the judgment of conviction and sentence passed by the learned Sessions Judge, Puri is affirmed and the appeal is dismissed. Final Result : Dismissed